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Minuit v. P.D.F. Construction Company et al.

CASE NO. 3145 CRB-3-95-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 26, 1996

MARC MINUIT

CLAIMANT-APPELLEE

v.

P.D.F. CONSTRUCTION COMPANY

EMPLOYER

and

AETNA LIFE & CASUALTY CO.

INSURER

RESPONDENTS-APPELLANTS

and

CHRISTOPHER M. SEVERINO a/k/a SHORELINE MASONRY

EMPLOYER

NO RECORD OF INSURANCE

RESPONDENT-APPELLEE

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by David Babbitz, Esq., and Vincent Falcone, Esq., Falcone & Lyons, P.C., 334-336 Main St., West Haven, CT 06516.

The employer P.D.F. Construction Company and its insurer were represented by Jason Dodge, Esq., and Richard Aiken, Jr., Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.

The respondent Christopher Severino a/k/a Shoreline Masonry was represented by Barry J. Sinoway, Esq., 142 Temple St., New Haven, CT 06510.

The Second Injury Fund was represented by Michael Belzer, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

The Petition for Review from the July 20, 1995 Finding and Award of the Commissioner acting for the Third District was heard May 24, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Nancy A. Brouillet and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The employer P.D.F. Construction Company and its insurer Aetna Life & Casualty (hereinafter “appellants”) have petitioned for review from the July 20, 1995 Finding and Award of the trial commissioner acting for the Third District. In that decision, the trial commissioner concluded that the claimant was an employee of P.D.F. Construction when he sustained an injury to his spine on July 9, 1991 while performing masonry work. In support of their appeal, the appellants contend that the October 7, 1994 remand decision by the board improperly overturned the trial commissioner’s initial determination that Shoreline had lent the claimant to P.D.F. pursuant to § 31-292. Alternatively, the appellants contend that the trial commissioner erred in finding that the claimant was an employee of P.D.F. rather than an employee of Shoreline Masonry.

A brief procedural history is in order. Initially, the trial commissioner acting for the Third District issued a Finding and Award on November 3, 1992 and a Supplemental Finding and Award on December 14, 1992, which were together appealed to the Compensation Review Board. The board, in Minuit v. P.D.F. Construction Co., 13 Conn. Workers’ Comp. Rev. Op. 1, 1551 CRB-3-92-11 (Oct. 7, 1994), held that the trial commissioner had improperly concluded that the claimant had been a lent employee pursuant to § 31-292, and thus remanded the matter to the trial commissioner. Pursuant to the remand, the trial commissioner held a further hearing and on July 20, 1995 the trial commissioner issued a finding and award which is the subject of the present appeal.

In the July 20, 1995 decision, the trial commissioner found the following relevant facts. P.D.F. Construction was performing construction work at a Department of Transportation (DOT) construction site in Clinton. P.D.F. needed to have some masonry worked performed, and thus Paul Ferreira, P.D.F.’s president, contacted Shoreline Masonry, whose owner, Chris Severino, agreed to complete the work for P.D.F. Because Shoreline Masonry was not certified by the DOT to do masonry work, Severino and Ferreira agreed that the masons would be considered employees of P.D.F., which was DOT-certified. Severino contacted the claimant along with several other masons. The claimant had been a former partner in Shoreline Masonry in 1987 and had worked for Shoreline on approximately twelve jobs between 1987 and 1991. Severino told the claimant that he would be working for P.D.F., although the claimant never discussed his employment contract with representatives of P.D.F. In addition, P.D.F. submitted payroll information to the Department of Labor which indicated that both the claimant and Severino were employees of P.D.F. Severino supervised the claimant’s work at the site. The claimant injured his back in the course of his duties at the job site on July 9, 1991, one day after he began working there.

We will first address the appellants’ contention that it was improper for the board in its October 7, 1994 decision to overturn the trial commissioner’s determination that the claimant was a lent employee. Specifically, the appellants contend that this board may not “retry the facts” as the “power and duty of determining the facts rests on the commissioner, the trier of facts.” Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). In the instant case, the trial commissioner initially determined that Shoreline had lent the claimant to P.D.F. pursuant to § 31-292. The board disagreed, however, stating that the trial commissioner had “improperly concluded that the claimant was a lent employee.” Minuit, supra, at p. 3. The board determined that the facts as found by the trial commissioner did “not support the legal conclusion that the statute (§ 31-292) applies to this case.” Id. at p. 4.

Contrary to the appellants’ contention, the board did not retry the facts of the case. Rather, the board made a determination that the facts as found by the trial commissioner were not sufficient to support the conclusion that the claimant was a lent employee pursuant to § 31-292. General Statutes § 31-292 provides: “When the services of a worker are temporarily lent or let on hire to another person by the person with whom the worker has entered into a contract of service, the latter shall, for the purposes of this chapter, be deemed to continue to be the employer of such worker while he is so lent or hired by another.” Under § 31-292, “liability is in all cases imposed upon an employer who has ‘temporarily lent or let on hire’ to another the services of one of his employees.” Lucarelli v. Earle C. Dodds, Inc., 121 Conn. 640, 644 (1936) (emphasis added). In order to be liable under § 31-292, a lending employer must be a “person with whom the (injured) worker has entered into a contract of service.” Additionally, given the temporary nature of the lending or letting for hire to another, the required employer-employee relationship between the claimant and the lending employer must not only have existed immediately before the lending occurred but must also have been contemplated to have resumed after the lending. As the facts as found by the trial commissioner did not indicate that the claimant had been an employee of Shoreline immediately prior to his employment with P.D.F., the board properly determined that the trial commissioner’s application of § 31-292 was legally incorrect.

We will next address the appellants’ contention that Shoreline rather than P.D.F. was the claimant’s employer. “The determination of the status of an individual as an independent contractor or employee is often difficult . . . and, in the absence of controlling considerations, is a question of fact....” Chute v. Mobil Shipping & Transportation Co., 32 Conn. App. 16, 19-20, (1993) (citation omitted), cert. denied, 227 Conn. 919 (1993). In the instant case, the trial commissioner determined that the claimant was an employee of P.D.F. Specifically, the trial commissioner found that Shoreline was not properly certified to perform masonry work on the site. Therefore Shoreline’s president, Severino, and P.D.F.’s president, Ferreira, made an agreement that Severino would contact masons to work as employees for P.D.F. at the Clinton job site. Moreover, Severino and Ferreira agreed that Severino would be an employee of P.D.F. at the Clinton job site. Severino supervised the claimant’s work at the job site. P.D.F. submitted documents to the Department of Labor which listed both Severino and the claimant as employees of P.D.F.

The trial commissioner’s conclusion that the claimant was an employee of P.D.F. is sufficiently supported by the facts as found by the trial commissioner, and thus may not be disturbed. Fair, supra. Moreover, we note that the appellants state in their brief that Ferreira intended that the claimant was to be an employee of P.D.F. (Appellant’s Brief at p. 4); that the claimant himself acknowledged that he was being hired by P.D.F. (Appellant’s Brief at p. 14); and that the appellants do not dispute the trial commissioner’s factual determination that P.D.F. had sufficient control over the claimant to establish an employee/employer relationship. (Appellant’s Brief at p. 17).

The trial commissioner’s decision is affirmed. The employer shall pay interest on any amount owed the claimant pursuant to § 31-301c(b).

Commissioners Nancy A. Brouillet and Michael S. Miles concur.

Workers’ Compensation Commission

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